Harry Reid Calls For Filibuster Reform, 15 Months Too Late

An angry Harry Reid took to the floor Thursday and demanded changes to the Senate’s hallowed filibuster rules, siding with junior Democrats who have sought to substantially weaken the powerful delaying tactic.

It’s a risky move for the Senate majority leader, who could find himself in the minority in a matter of months and need the filibuster to block the GOP’s agenda. But Reid — who struck a “gentleman’s agreement” last year with Senate Minority Leader Mitch McConnell to preserve the filibuster from an effort by Sens. Tom Udall (D-N.M.) and Jeff. Merkley (D-Ore.) to water it down — signaled he is now on board with their effort given the gridlock in the Senate.

“If there were ever a time when Tom Udall and Jeff Merkley were prophetic, it’s tonight,” Reid said on the floor. “These two young, fine senators said it was time to change the rules of the Senate, and we didn’t. They were right. The rest of us were wrong — or most of us, anyway. What a shame.”

Reid added: “If there were anything that ever needed changing in this body, it’s the filibuster rules, because it’s been abused, abused, abused.”

Reid’s comments came after he tried to quickly pass a House-passed bill aimed at reauthorizing the Export-Import bank. Republicans objected, asking for votes on five of their amendments. Reid filed a cloture motion, setting up a test vote for Monday evening to begin debate on the measure.

It takes 60 votes — and time-consuming cloture motions — to overcome a filibuster, a tool that has been employed with growing frequency by both parties over the years.

Of course, changing the filibuster rules would be enormously difficult to accomplish, given that it takes two-thirds of senators to do so.

The 2/3 vote requirement could have been avoided if the Democratic caucus had been able to get behind the reforms that were proposed by Senators Udall and Merkley at the start of the Senate’s current session in January 2011. At that point, they could have pushed reform through with just 51 votes using the so-called “constitutional option.” Republicans would have no doubt complained, but there would have been very little that they could have done since the Courts most assuredly not gotten involved in an internal Senate dispute over its own rules. As it turned out, though, the Democratic caucuses, and even some outside Democratic interest groups, could not get united on the Udall-Merkley plan, with some senior Senators arguing that the party should be careful about weakening filibuster rules that they would want to use in the future when they are in the minority. As a result, the filibuster reform plan died and was replaced by a series of “gentleman’s agreements” between Reid and Mitch McConnell that have mostly been honored in the breach.

As I noted at the time, the Udall-Merkley proposal had a lot to recommend to it. Among other things, it would have eliminated the practice of secret holds, which allow Senators to block legislation without having to admit publicly that they are doing so. The proposal also would would have required a Senator purporting to block a piece of legislation to be able to demonstrate support for his position in order to go forward. It would have given both the majority and the minority the right to submit a fixed number of amendments to legislation, something that has been a point of contention in recent years. Proponents of a filibuster would have also been required to hold the floor during the time the Senate was considering the legislation or forfeit their filibuster. Finally, it would have limited post-cloture debate on nominations, which nowadays is merely used as a delaying tactic. Others have suggested that a Senator purporting to filibuster a measure should actually be forced to hold the floor in order to delay Senate action in the style of Mr. Smith Goes To Washington. Perhaps we don’t need to go that far, we also don’t need to eliminate the filibuster entirely since it does serve the purpose of holding back majoritarianism and protecting the rights and interests of minorities. However, it seems fairly clear that reform of some kind is required. Too bad Reid didn’t take up this ball in January 2011 when it could have actually accomplished something.

The reality, of course, is that there are conflicting incentives for all parties in the Senate when it comes to filibuster reform. It’s easy to say that those in the majority oppose the filibuster while those in the minority support it, but it’s actually far more complicated than that. As we saw in the reaction of many senior Democrats to the Udall-Merkley plan, even when Senators are in the majority they tend to see the long-term and realize that they could be in the minority against some day, at which point these tools would be very valuable to them. Indeed, the senior Democrats in the Senate have all been in the minority at least once during their tenure. Therefore, filibuster reform ends up being opposed not only by the minority caucus, but by members of the majority as well. This is why the Udall-Merkely effort failed, and why I don’t believe that the Republicans will eliminate the filibuster if they should gain the majority in November. In the end, filibuster reform isn’t in the long-term interest of either party, and as long as that’s the case we’ll end up with the same Senate we have today.

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About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Comments

Well, Democrats are going to need the current filibuster rules if they become a minority in the next Senate.

Perhaps I’m assuming the worst here. Come to think of it, I’m sure that should Romney win and the GOP takes over the Senate, that Democrats will afford Republicans exactly the same level of bipartisanship and cooperation that Republicans afforded President Obama.

There’s also another institutional reason senators are motivated to oppose filibuster reform: it’s basically the only Senate rule that ensures individual senators outside the party leadership structure have any real power in the chamber. Most Senators served in the House, or another majority-rule legislative chamber, as mostly-powerless rank-and-file members; one major consequence of ending the filibuster would be delegating more agenda control power to the party leadership.

…elections used to have consequences. ie. if your side lost because of whatever reason, the other side gets to enact their agenda to the agreement or dismay of the voters.

…when the minority can effectively bind the hands of the majority, the lessons that might be learned from an electoral drubbing are not learned. This is really a cancer on the body politic and is most unhealthy. Exhibit “A” … Today’s congress.

I agree that the filibuster is overused and is, under the Republicans, basically become an excuse for kneejerk obstructionism. However, the principle of allowing the minority to sometimes block action by a slim majority is not necessarily a bad one. Societies where sizable minorities continually have their will thwarted tend to eventually destabilize.

Possible idea for a solution: replace the filibuster with something like a legal “recess appointment”. That is, if a cloture vote passes by more than 50 votes, but less than 60 votes, the law can still be voted on, but only if it contains a rider causing it to sunset after one year.

That way the majority can still pass the law, but it is kept from being made permanent.

@Stormy Dragon:
Agreed … but how about Societies where the rule of the majority is not enough to enact legislation. I believe this to be a much bigger problem than the other way around.

We have checks and balances for a reason. That is why even if the Senate goes Republican and the House remains so … the Executive can use veto power.

The truly sad issue with the filibuster is that the American citizens voted in 2008 for transformational change. Think of single payer health care, etc. and were given luke warm watered-down legislation to cave to the 60 votes required crowd.

When the media report that the ACA is unpopular, what you don’t hear is that it is half and half that it went too far and it didn’t go far enough.

@Tillman: “What exactly in 2009 and 2010 convinced Reid and senior Democratic senators that the filibuster didn’t need reform? That’s what I want to know.”

I think the filibuster protects moderates in the majority from having to make tough votes. The majority leadership should be concerned about exposing members vulnerable in the next election to major legislation that passes on bare majority.

I’m having a very difficult time here figuring out Reid’s strategy. Either Reid has brass cojones the size of boulders or he’s going senile.

There’s a material likelihood — albeit obviously not a probability — that next January we’ll have President Romney presiding over GOP majorities in both chambers of Congress. In that event the Democrats will need the filibuster tool as sure as plants need CO2 and humans need oxygen.

Let’s be very frank: Ginsburg could go at any moment. Without the filibuster in the Senate Romney in the above scenario could replace Ginsburg with someone as far to the right as Scalia and Thomas, e.g., William Pryor, Wallace Jefferson, Jerome Holmes, Dale Wainwright, Jennifer Elrod, etc. It’s also not outside the realm of possiblity that Romeny as president would have the opportunity to replace Ginsburg and Breyer. Again, without the filibuster we could see the following swaps: Wallace Jefferson for Ginsburg and William Pryor for Breyer, or something similar. In that event, over the ensuing decade, the SCOTUS would have the ability pretty much to eradicate from the law books all major traces of leftism.

The polling data must show that the Democrats are going to retain control of the Senate. Given that the demographic changes in the U.S. the Democrats have to realize that they will continue to dominate elected office and politics in the U.S.

The real question is what will politics be like in the coming one party state and no limits on Congress. How high can Congress raise taxes. Will the government attempt to regulate every segment of society.

Without the filibuster in the Senate Romney in the above scenario could replace Ginsburg with someone as far to the right as Scalia and Thomas, e.g., William Pryor, Wallace Jefferson, Jerome Holmes, Dale Wainwright, Jennifer Elrod, etc. It’s also not outside the realm of possiblity that Romeny as president would have the opportunity to replace Ginsburg and Breyer. Again, without the filibuster we could see the following swaps: Wallace Jefferson for Ginsburg and William Pryor for Breyer, or something similar.

Hmm, an interesting scenario…one would imagine that if the Democrats didn’t have the filibuster to stop the appointment of these type of people to SCOTUS, they would utilize any other means necessary to stop them, including shutting down the federal government…in this, they would do well to study their Republican colleagues…

“Democrats will afford Republicans exactly the same level of bipartisanship and cooperation that Republicans afforded President Obama.”

Nonsense. That’s just childish, partisan, false equivalence, “they all do it” BS. And you and everyone else knows it!

Only the Democrats were willing to compromise to get the business if governing done, during these Obama years. Not the Republicans. And you and everyone else knows it!

During the W years it was also the Democrats that compromised and gave W the benefit of the doubt on every issue, even his blatant lies about Iraq, torture and everything else he spouted. Hey, he is the president he wouldn’t blatantly lie – but he did – repeatedly. And you and everyone else knows it!

You are a Republican, therefore you love America right? So how about being more loyal to your country – the whole country – than to your party!